Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, January 31, 2021

India: Child's Custody Issue

From Tribune News Service:

The Punjab and Haryana High Court has made it clear that a minor under five years of age may not be residing with mother, but custody will be deemed to be at the place where she is putting up and the matter will be heard there. The controversy was whether the family court at Panipat had territorial jurisdiction to entertain a petition instituted by a mother to seek her daughter’s custody.

The father’s claim was that the minor’s custody was with him and the family court where the minor child “ordinarily” resided would have territorial jurisdiction. In this case, the child was in her father’s physical custody at Jagadhri. Referring to Section 6, Justice Monga asserted that there was a legal presumption with regard to natural guardianship vis-a-vis a “minor’s person” and “minor’s property” in case of a child less than five years of age and both were in favor of the mother. Along with view from the Bench, the court states that a female child below five will naturally lie with mother and therefore, custody will be with mother even if actual custody is with the father.

Justice Monga observed that the respondent-mother, at the time of instituting proceedings in the family court, was the deemed natural guardian of the minor and therefore, natural custody would be presumed to be with the mother, regardless of the place where the child was actually residing physically at that time. Justice Monga also considered the welfare and convenience of the child.

Read more here.

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